CRL A/411/1995 of Vs on 22 November 2002

:J U D G M E N T

Rama Rao, the appellant herein was convicted for the offence underSection 409 I.P.C. and sentenced to undergo R.I. for two years and to pay afine of Rs.2,000/-. He was also convicted for the offence under Section5(1)(c) read with 5(2) of the Prevention of Corruption Act, 1947 and sentencedto undergo R.I. for one year and to pay a fine of Rs.1,000/-. Besides this,the appellant was directed to reimburse the misappropriated amount ofrs.23,420/- to the State, in default, he has to undergo R.I. for one year.Challenging the same, the present appeal has been filed by the appellantherein.

2. The case of the prosecution in brief is as follows:"(a) The appellant was the L.D.C. Bill Collector in the Office of theJunior Engineer, Electricity Department, Yanam. D.Krishnamurthy ( P.W.1) wasthe Superintending Engineer for the entire Electricity Department for theUnion Territory of Pondicherry during that period. G.Krishnamurthy (P.W.2)was the Executive Engineer working under the control of P.W.1 at Karaikalhaving jurisdiction over Yanam. P.W.3 Abdul Hameed, Sub Inspector of Bill Collections, Electricity Department working under P.W.2 at Karaikal. P.W.4Ramakrishna Rangan was the Assistant Engineer under the control of P.W.2 atKaraikal. P.W.5 R. Dattarayulu was the Executive Engineer at Pondicherryworking under the control of P.W.1.

(b) On 28.10.1983, a complaint was received by P.W.1, theSuperintending Engineer from Sri Gayathri Rice Mill against the misconduct ofthe public servants D.Sathiyamoorthy, Assistant Engineer and Nageswara Rao.Junior Engineer in the Yanam Electricity Department.

(c) On 21.11.1983, P.W.1 directed P.W.2 to conduct a probe on the saidcomplaint by the order Ex.P6. Accordingly, P.W.2 went to Yanam and inspectedthe Electricity Office. He found irregularities committed by the saidSathiyamoorthy, Assistant Engineer and Nageswara Rao, Junior Engineer inrespect of the temporary power connection to Gayathri Mill and other mills.

During the course of inspection, he also found various amounts collected fromthe consumers of electricity by the accused have not been credited into andthe same have been misappropriated.

(d) On finding that the accused/appellant committed various irregularities, P.W.2 sent a report Ex.P10 dated 20.12.1983 to P.W.1. He alsorequested P.W.1 to send some officials to Yanam Electricity Office to make afurther probe for verification of the original receipts issued by the accused.Accordingly, P.W.5 R.Dattatrayulu, Assistant Executive Engineer, ElectricityDepartment, Pondicherry was sent to Yanam for inspection of the records.P.Ws.3 and 4 also were sent for verification of the duplicate and triplicatereceipts and petty cash books maintained by the accused.

(e) P.W.3 after verification of the records found out that variousduplicate and triplicate receipts and petty cash books maintained by theaccused were falsified by him. Therefore, he submitted reports Ex.P31 dated14.1.1984 and P32 dated 18.2.1984 to P.W.2. P.W.4 also conducted inspectionand noticed that the accused adopted the same modus operandi in falsifying somany receipts. He obtained the statement Ex.P38 from the accused andsubmitted it along with his report Ex.P3 7 to P.W.2. Consequently, P.W.2 senthis report Ex.P9 dated 19.1.198 4 to P.W.1, the Superintending Engineer.

(f) Thereafter, P.W.2, the Executive Engineer issued a memorandum tothe accused along with a statement of inspection and asked him to pay themisappropriated amounts. The accused sent a letter Ex.41 dated 22.3.1994 toP.W.2 requesting to permit him to peruse the original, duplicate andtriplicate receipts. Accordingly, he was permitted to peruse the records.Then on 16.5.1984, the accused sent a letter Ex.P47 denying the allegations ofmisappropriation.

(g) Then, P.W.15 Mr.N.Pazhanisamy, the Deputy Secretary, Government ofPondicherry, on receipt of reports Ex.P157 and P158, sent a complaint to theC.B.I., Madras on 20.1.1984. The complaint is Ex.P156.

(h) P.W.14, the Inspector of Police, SPE, CBI, Madras received the complaint and registered the case. The case was registered against theaccused as well as others for various offences including the offence under theprevention of Corruption Act.

(i) During investigation, P.W.14, the Inspector of Police obtained thespecimen signatures from the accused and collected the standard writings ofthe accused and sent them for comparison. P.W.13 Handwriting Expert sent areport stating that the accused has written the documents in question.

(j) After getting sanction Ex.P1 from P.W.1, the SuperintendingEngineer, P.W.14, the Inspector of Police filed the charge sheet against theaccused under Section 409 I.P.C. and Section 5(1)(c) read with 5(2) of thePrevention of Corruption Act, 1947 for misappropriation of Rs.39,594/-."

3. After trial, when the accused was examined under Section 313 Cr.P.C., he merely denied his complicity in the crime.

4. The trial Court, on an appreciation of the materials available onrecord, concluded that the prosecution has established its case against theaccused beyond reasonable doubt and convicted him under Section 409 I.P.C.and under Section 5(1)(c) read with 5(2) of the Prevention of Corruption Actand sentenced him thereunder. Hence, the appeal aggrieved by the same.

5. The learned counsel for the appellant would make the followingcontentions:

"(1) For proving the offence under Section 409 I.P.C. and Section

5(1)(c) of the Prevention of Corruption Act, the prosecution has to prove thatthe accused was entrusted with the collection of funds from the consumers andthose funds entrusted to him has been misappropriated after manipulation. Themain ingredient is absent in this case as there is no evidence for the same.There are discrepancies as well as contradictions with reference to the amountof misappropriation and the period of offence in Ex.P1, the charges framed bythe Court and the findings given by the court. The vital documents likeconsumer meter cards, Registers, Bank chalans showing the actual remittancesinto the Bank, the Demand Notes were not produced before the court. Thatapart, some of the consumers who are the material witnesses were not examined.Admittedly, there is no written complaint received from the consumers. Evenbefore the C.B.I. took up investigation, the accused sent letters Ex.P43 andP47 denying the allegation of misappropriation. Though the charge was for themisappropriation of Rs.39,59 4/-, the trial Court found that the amount ofmisappropriation was only Rs.23,420/-. Apart from the sentence imposed forthe offences tried, the trial Court directed the accused to reimburse theamount of Rs.23,420/-, the misappropriated amount to the State and in defaultin paying the amount, he has been sentenced to undergo R.I. for one year.For directing the reimbursement of the amount and imposing the defaultsentence, there is no provision empowering the trial Court to pass such order.Therefore, the conviction is illegal.

(2) Ex.P1 sanction order has not been granted by the competentauthority. P.W.1 is only the Superintending Engineer. The appointment of theaccused to the post of L.D.C. was made by the General Administration Department. In the absence of sanction granted by the said department, thecognizance on the above prosecution is not valid. The relevant documents havenot been filed to prove the particulars regarding the appointing authority.Furthermore, the sanction Ex.P1 does not contain the reasons for satisfactionto prosecute the accused and as such, the same cannot be a proper sanction.Therefore, the prosecution is vitiated. In order to substantiate his plea, hewould refer to the following authorities:

1) CENTRAL BUREAU OF INVESTIGATION v. V.K. SEHGAL (A.I.R.1999S.C.3706);

2) MADAN MOHAN v. STATE OF UTTAR PRADESH (A.I.R.1954 S.C.637 );

3) N.M. RAJENDRAN v. THE STATE (1995 CRI.L.J.4195);

4) BAIKUNTHANATH MOHANTY v. STATE OF ORISSA (1985 CRI.L.J.56 3);

5) MOHD. IQBAL AHMED v. STATE OF A.P. (A.I.R.1979 S.C.677);

6) DEEN MOHAMMED v. STATE REP. BY C.S.C.I.D., CUDDALORE (1996(1) MWN(Cr.).

6. In regard to the above submissions, Mr.N.Ranganathan, the learnedcounsel for the respondent would point out various materials to show that theaccused was entrusted with the duty of collecting the electricity charges fromthe consumers and he created false records by making entry only for lesseramounts, even though he issued original receipts to consumers for the amountsreceived from them and thereby, he committed misappropriation to the tune ofseveral thousands. With reference to the sanction, it is submitted that thesanction order Ex.P1 is a valid one as P.W.1 is the authority to remove theaccused and furthermore, under Section 465 Cr.P.C., the conviction cannot beset aside merely on the basis of any error, omission or irregularity in thesanction obtained for prosecution unless a failure of justice has beenoccasioned thereby. He would cite the decisions in SHIVENDRA KUMAR v. STATEOF MAHARASHTRA (2002 S.C.C. (Cri) 564) and RAMANATHAN v. STATE (1999M.L.J.R.(Crl.) 454.

7. I have carefully considered the respective submissions made by thecounsel for the parties and also gone through the records.

8. On a careful scrutiny of the materials available on record, I amof the view that the contentions urged by the counsel for the appellant do notdeserve acceptance. To arrive at this conclusion, the reasons are given asbelow.

9. According to P.W.2 G. Krishnamurthy, the Executive Engineer,Electricity Department, Pondicherry, who is having control over the accused,the accused was entrusted with the duty of collecting the electricity chargesfrom the consumers. Ex.P11 memorandum dated 21.7.1982 and Ex.P12 letter dated 13.10.1982 would support his version. Ex.P13 is the circular dated 31.1.1979stipulating the duties and responsibilities of the Cashier of the ElectricityDepartment.

10. According to the prosecution, the accused collected the amounts from the consumers and issued original receipts form the said amounts, butwhile preparing the duplicate and triplicate receipts which were kept in theoffice, he made entries with reference to the lesser amounts in the names ofthe same parties and misappropriated the remaining amounts. The materials toprove that the amounts had been collected as electricity charges have beenplaced through oral evidence through P.Ws.7, 8, 10, 11 and 12. The evidenceof the official witnesses, namely P.Ws.2 to 5 and 13 would corroborate thesame.

11. According to P.W.7, who is the representative of the Padma BalajiRice Mills, he paid Rs.13,035/- towards electricity charges to the accused.He was assisted by the Clerks P.W.8 and P.W.10. The payment of the saidcharges had been entered into the day book Ex.P41. In Ex.P86, the originalreceipt, it is mentioned as Rs.13,035/-. But, in the duplicate and triplicatereceipts and petty cash book, Exs.P87, P88 and P89 respectively prepared bythe accused would show that only receipt of Rs.21/- has been endorsed asspoken to by P.W.5. According to P.W.13, the Handwriting Expert and P.W.9,the Line Inspector, who is acquainted with the signature of the accused, thosedocuments Exs.P86 to P89 are in the handwriting of the accused.

12. Similarly, regarding the electricity charges paid by Sri Sumuga Veereswara Rice Mill, P.W.10 who was looking after the accounts of the saidMill, stated that he made the payment of Rs.6,425.70 to the accused under theoriginal receipt Ex.P137A. In the day book Ex.P146, the said amount has beenmentioned. But, the corresponding duplicate and triplicate receipts Ex.P137Band P137C would show that the entry was made for a sum of Rs.2,816.70 insteadof Rs.6,425.70.

13. Similarly, Rs.3,333/- was paid to the accused by the Lakshmi

Ganesh Modern Rice Mill and original receipt Ex.P139A was obtained from theaccused. P.W.11, the Manager of the said Mill would speak about the paymentand the receipt of the original receipt Ex.P139A from the accused. Theentries were made in Ex.P148, the day book and Ex.P14 8A, the relevant page.But, on inspection by P.W.5, it was found from the duplicate and triplicatereceipts Exs.P139B and P139C that only a sum of Rs.8.45 was entered instead ofRs.3,333/-.

14. In respect of the payment of Rs.5,467/- and Rs.4,834.50 towards electricity charges by Sri Venkateswara Rice Mill, another consumer, P.W.12would clearly state that he made the payment of Rs.5,467/- on 29.4.1983 andobtained receipt Ex.P96 and on 7.5.1983, he paid Rs.4,834.50 towards theelectricity charges to the accused and obtained receipt Ex.P149. Then, P.W.3cross-checked the other records. Ex.P97 duplicate receipt and Ex.P98triplicate receipt would show that the entries were made only for lesseramount, Rs.1,350.50 instead of Rs.5,467/. In regard to the other payment ofRs.4834.50 entrusted to the accused by P.W.12, he would specifically statethat he made the payment to the accused on 7.5.1983 and obtained the receiptEx.P149. But, in the petty cash book maintained in the department, theaccused made an entry only in respect of Rs.1,350.30 instead of Rs.4,834.50.

15. The fact that all the entries were made by the accused has been established through the evidence of P.W.9, the Line Inspector P.W.9, who isacquainted with the signature of the accused, and P.W.13, the HandwritingExpert. Under those circumstances, the contentions that he was not entrustedwith the duty of collecting electricity charges, that he has not collected anycharges and that the consumers have not been examined, all would fail.

16. With reference to the variation in the figures in respect of the misappropriated amount between the charge and finding of the Court, I am ofthe view that the trial Court is correct in concluding that the accused hadmisappropriated Rs.23,420/-, since the said finding is on the basis of theavailable evidence on record. Merely because the prosecution was not able toproduce materials to prove the charge in respect of the misappropriated amountof Rs.39,594/-, it cannot be held that the case of the prosecution must berejected even in respect of the proved misappropriated amount.

17. It was nextly contended with vehemence that the sanction is invalid. This contention, in my view, has no basis. According to theprosecution, P.W.1 being the Head of the Department is the appointingauthority and the removing authority. Even in the chief examination, P.W.1would state that he is the removing authority and as such, he is the competentauthority to grant sanction. This has been mentioned in Ex.P1 itself. But,his evidence has been challenged that the appointing authority is only GeneralAdministration Department and as such, the Superintending Engineer has nopower to grant sanction. Unfortunately, the defence did not choose to put anysuggestion to P.W.1 5, who is the Deputy Secretary, General AdministrationDepartment, who is said to be the appointing authority, according to theaccused. As a matter of fact, there was no challenge in respect ofsanction, while P.W.15 was examined.

18. Under Section 6(c) of the Prevention of Corruption Act, the

18. Under Section 6(c) of the Prevention of Corruption Act, the person who is competent to remove can grant sanction. Even in the memorandumfiled by the accused before the trial Court, while the arguments wereadvanced, the trial Court would refer to the same and conclude that thememorandum also would show that L.D.C. Bill Collectors were appointed only bythe Head of the Department.

19. On going through the evidence of P.W.1 and Ex.P1, which clearlygives the details of the accusation against the accused, there is nodifficulty in holding that P.W.1, who was the Superintending Engineer then,who was having control over the entire Electricity Department of thePondicherry Union and who was competent to take disciplinary action anddismiss the L.D.C. Bill Collectors, would be competent to grant sanction andas such, the sancti on granted by him cannot be said to be invalid.

20. The decisions cited by the counsel for the appellant would not beof any help for the appellant, as, in my view, both sanction and thecompetence of P.W.1 to grant sanction have been validly proved. Under thosecircumstances, the conviction imposed on the appellant/ accused for theoffence under Section 409 I.P.C. and Section 5(1)(c) read with 5(2) of thePrevention of Corruption Act is liable to be confirmed and accordingly confirmed.

21. However, a direction to reimburse the amount of misappropriation,as conceded by the counsel for the respondent, is not warranted as there is noprovision for giving such direction. Therefore, the said direction given bythe trial Court asking the accused to reimburse the amount ofmisappropriation, namely Rs.23,420/- and the consequent default sentence isliable to be set aside and accordingly set aside.

22. The appellant has been sentenced to undergo R.I. for two yearsfor the offence under Section 409 I.P.C. and R.I. for one year for theoffence under Section 5(1)(c) read with 5(2) of the Prevention of CorruptionAct. As the appellant being the public servant has lost his job in view ofthe conviction, in my opinion, the ends of justice would be met by reducingthe sentence of imprisonment from two years to one year for the offence underSection 409 I.P.C., while sustaining the sentence of fine imposed for both theoffences.

23. With the above modification in sentence, the appeal is dismissed.The trial Court is directed to secure the custody of the appellant/accused toundergo the remaining period of sentence.

Index: YesInternet:Yes

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To

1) The Special Judge, Pondicherry.

2) -do- the Chief Judge, Pondicherry.

3) The Special Public Prosecutor for CBI cases, Madras.